Rex v Hermitte (Cr. Rev: Case No. 44/1938) [1938] EACA 189 (1 January 1938)

## **CRIMINAL REVISION**

BEFORE SIR JOSEPH SHERIDAN, C. J. AND THACKER, J.

## REX, Prosecutor

## $\mathbf{v}$

## LOUIS HERMITTE, Applicant (Original Accused) Cr. Rev. Case No. 44/1938

Creating disturbance so as to be annoyance to residents or passengers -Nairobi Municipality By-laws, 1929, By-law 565 (10)-Ultra Vires—Uncertainty.

Held (27-6-38).—That by-law 565 (10) of the Nairobi Municipality By-laws. 1929, is ultra vires and bad for uncertainty.

The facts appear from the judgment.

Khanna for the applicant.

Phillips, Crown Counsel, for the Crown.

JUDGMENT.—The appellant was convicted and fined under a bylaw made under section 69 of the Local Government (Municipalities) Ordinance, 1928. The by-law is No. 565 (10) of the Nairobi Municipality By-laws, 1929 (Vol. 1 Laws of Kenya, Orders, Proclamations, Rules, Regulations, etc., Cap. 84, p. 676 at p. 791); it reads: "No person shall create any disturbance so as to be an annovance to any residents or passengers". It has been contended before us that this by-law is *ultra vires inter alia* because it is uncertain. It is on that ground we propose to deal with the question of its validity. After a very full argument by Counsel for the Crown and the appellant and after a close scrutiny of the language of the by-law in contrast with the language of other by-laws made by the Municipality we found ourselves quite unable to say in what circumstances and in what place (whether a public place or a private residence) a disturbance would fall within the meaning of the by-law; nor did we find ourselves able to say what kind of disturbance was contemplated. This state of mind may be said to be a strong argument in favour of the contention that the by-law is invalid for uncertainty. The uncertainty of the particular by-law becomes more manifest when one contrasts it with By-law No. 565 (3) reading: "No person shall in any street or place of public resort, or in any place within sight or hearing of the persons therein, with intention of annoying or irritating any other person, sing any scurrilous or abusive songs or words, whether any person be particularly addressed therein or not". Indeed as counsel for the appellant argued the very words of the learned magistrate's judgment evidence the uncertain character of the by-law. He says: "I conceive disturbances to which it might be held that this by-law could not apply in that its object is to ensure good rule and government in the Municipality and not to put a stop to private quarrels which do not interfere with third persons". Counsel for the appellant relied on the decision in Scott v. Pilliner (1904 2 K. B. 855). In that case Lord Alverstone, C. J., at p. 858, said: "I think that this Court ought not to interfere with a by-law made by a local authority if it can be supported on reasonable grounds; but I also think that it is desirable for the good government of a locality that by-laws should be clear and definite and free from ambiguity, and also that such by-laws should not make unlawful things which are otherwise innocent" and the learned Chief Justice proceeded to characterize the by-law in question as "too wide".

In the case before us the recognition of the by-law in question would in our opinion have the undesirable and mischievous effect referred to by Lord Alverstone. We find the by-law uncertain and would be prepared to hold, if necessary, that it was couched in such wide terms as to be unreasonable. The appeal will accordingly be allowed, the by-law pronounced ultra vires of the powers conferred upon the Municipality, the conviction quashed and the fine, if paid, directed to be returned.